Preventing sexual harassment in the ‘touchy feely’ pub sector

But in 2017, examples of sexual harassment at work remain pervasive. From horror stories about sexual predator and Hollywood mogul Harvey Weinstein to the inappropriate behaviour from cabinet minister Michael Fallon, which led to his resignation from the Government, examples of what not to do are everywhere. There’s even a self-confessed 'pussy-grabber' in the White House.

“You hear people say patting people on the bottom was acceptable in the 1970s. It wasn’t, but there were more people doing it,” says Michael Moran chief executive of employment consultancy 10Eighty.

“I’m slightly old fashioned but it was never acceptable to do this type of thing.”

Kisses for shifts

Publican, hotelier and post mistress Victoria MacDonald from the Vanellus Inns group says when she was working in hospitality in 1980s “one manager would expect kisses from the female staff and the best kiss got the best rota”.

She says: “I had the worst four months of shifts you can imagine. I nearly quit. When I spoke to my employer I was told ‘that’s just his way’. I was appalled.”

Be it unwanted attention, sexual comments – often excused as banter – or inappropriate touching, for employers the line is clearer. If one of your employees is sexually harassed at work you will be held accountable.

Clare Gilroy-Scott, partner at law firm Goodman Derrick, says anything done by an employee while working is treated as being done by the employer. An employer may be vicariously liable for harassment by one member of staff against another.

Employers take note, the rise of the #MeToo movement is prescient.

So how can you ensure your employees know what is or isn’t acceptable?

What is inappropriate behaviour?

Gilroy-Scott says: “There’s no blanket behaviour [that we can point to] because it’s about the effect of that behaviour on the individual.

“One person might be fine with it, another might not be. The key thing is whether it is reasonable or not.”

Moran says: “Hospitality is quite a touchy-feely industry. The level of that can be very high.”

He says people need to use their common sense. “The rule would be ‘what would an ordinary person think?’. For example, touching an employee on the shoulder, as part of recognition for work well done, wouldn’t be construed as sexual harassment. But patting an employee on the bottom is clearly inappropriate.

“I use the example, ‘would you tell your mother what you had done?’ I bet you they wouldn’t. So that’s a good rule of thumb.”

Action for employers

MacDonald says if one of her staff reported they’d been asked for a kiss to get a better work shift, they would take it very seriously. “Our code of conduct covers how you treat your colleagues, so it would be quite clear that actions like that would be unacceptable.”

She says there would be a proper investigation and a grievance procedure would be followed, and the appropriate action would be taken.

It wouldn’t matter who it was, whether it was a chef, manager or customer, that behaviour is not right, she adds, and educating staff about what is expected in terms of behaviour and dress is vital.

If someone raises an issue of sexual harassment, you have to take it seriously, says Moran, and you have to be employee-centric.

“You have to make sure you listen to what the complaint is and do due diligence to investigate what has happened. You need to make the other party aware and carry out an investigation like you would any other disciplinary matter.”

Whether it’s making a suggestion, touching somebody, harassment, they’re on a scale going up, but it probably wouldn’t constitute gross misconduct in the first instance.

“But irrespective of that, you need to do a thorough investigation and involve at least HR or an independent third party, like an HR consultant. The critical thing here is taking the complaint seriously and make sure the individual who has raised it knows you are and that there is going to be an outcome,” he says.

Moran says that an independent third party, someone that is not directly involved, needs to be part of the investigation. “If the allegations are against the pub manager, he can’t run the investigation.”

For smaller employers that don’t have an HR department, there are a lot of consultants who specialise in the SME (small and medium-sized enterprises) market.

Allegations of sexual assault should be reported to the police.

Pre-emptive action

Employer vigilance is crucial, says Gilroy-Scott. “It’s about understanding that some individuals will take offence.

“Someone may be playing along but they may be doing so because they may not be promoted or be part of the group. It’s a minefield.”

She says the key for employers is to create a workplace environment that is more savvy about the risks.

To do this, employers need to take “reasonable steps” to educate staff about what might be considered harassment. If employers do this they will have a defence if one employee behaves unreasonably towards another and the case goes to tribunal, she says.

Reasonable steps include training staff to recognise that if someone says I don’t like that, don’t touch me in that way, they must respect that.

Ensuring you have anti-harassment and anti-bullying policies in the workplace and communicating those to employees is an important step. But while it sets out the kind of conduct that is unacceptable, more vague conduct can still be a problem.

“If employers are worried about their culture at work then the answer is to look at training, policies, risk awareness of the issues and how complaints can be raised,” says Gilroy Scott.

Moran points to e-learning as a good training option.

“It will cover sex discrimination so employees understand the obligations. One good thing about doing something like this is that it becomes a ‘get out of jail card’ if someone takes you to tribunal because you can say ‘look, I trained the manager, what more could I have done because he or she has clearly acted on their own? When they did the learning programme they scored 99 out of 100, so they knew the responsibilities'."

The definition for sexual harassment is broad. Gilroy-Scott says: “It’s not about touching a knee, it’s banter and jokes and sexual conduct. So training for staff needs to go a bit further than the law. It’s about being aware of what your colleagues are OK or not OK with. If they [employers] are taking those steps beforehand, they may succeed with a defence at tribunal.”